Citation Nr: 0528860
Decision Date: 10/27/05 Archive Date: 11/09/05
DOCKET NO. 03-18 380 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for sleep apnea.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. Cryan, Counsel
INTRODUCTION
The veteran had active service from February 1987 to June
1999.
This case is before the Board of Veterans' Appeals (Board) on
appeal a June 2001 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri, which denied service connection for sleep apnea.
FINDING OF FACT
Obstructive sleep apnea had its onset during during active
service.
CONCLUSION OF LAW
Resolving all doubt in the veteran's favor, obstructive sleep
apnea was incurred in service. 38 U.S.C.A. §§ 1110, 1131,
5107, 38 C.F.R. §§ 3.102, 3.303 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) emphasized
VA's obligation to notify claimants what information or
evidence is needed in order for a claim to be substantiated,
and it affirmed VA's duty to assist claimants by making
reasonable efforts to get the evidence needed. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A and 5107 (West 2002). In the
decision below, the Board has granted the veteran's claim for
service connection for sleep apnea, and therefore the
benefits sought on appeal have been granted in full.
Accordingly, regardless of whether the requirements of the
VCAA have been met in this case, no harm or prejudice to the
appellant has resulted. See Mayfield v. Nicholson, 19 Vet.
App. 103, 115 (2005); Conway v. Principi, 353 F.3d 1369 (Fed.
Cir. 2004); Pelegrini v. Principi, 17 Vet. App. 412 (2004);
Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.
II. Pertinent Law and Regulations
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). For
the showing of chronic disease in service there is required a
combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time. If chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim. Service
connection may be granted for any disease diagnosed after
discharge, when all of the evidence establishes that the
disease was incurred in service. 38 C.F.R. § 3.303 (2004).
In order to establish service connection for the claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. Hickson v. West, 12 Vet. App. 247, 253 (1999).
The determination as to whether the requirements for service
connection are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin
v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2004).
Once the evidence is assembled, the Board is responsible for
determining whether the preponderance of the evidence is
against the claim. If so, the claim is denied; if the
evidence is in support of the claim or is in equal balance,
the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz
v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001);
38 C.F.R. § 3.102 (2004). If the Board determines that the
preponderance of the evidence is against the claim, it has
necessarily found that the evidence is not in approximate
balance, and the benefit of the doubt rule is not applicable.
Ortiz, 274 F.3d at 1365.
III. Factual Background and Analysis
Records show that the veteran was diagnosed with obstructive
sleep apnea during service. Specifically, an April 1999
polysomnography report prepared at a sleep disorders lab
associated with the Naval Medical Center in Portsmouth,
Virginia, notes an impression of obstructive sleep apnea,
likely moderate to severe, with an RDI of 47.
In contrast, however, is another polysomnography report
prepared by the same lab in June 1999 which indicates an
impression of primary snoring, with no evidence of
significant obstructive sleep apnea. The examiner noted that
the discrepancy between the two studies suggested the
possibility of an environmental allergen in the home bed
setting.
Nevertheless, this conflict was apparently resolved after
service, in November 1999, when the veteran underwent further
testing which indeed revealed an impression of mild
obstructive sleep apnea, with good response to nasal CPAP
(continuous positive airway pressure).
The veteran was afforded a VA examination in May 2001. The
examiner reported that his wife began to notice that he would
stop breathing during the night in the sometime during the
mid 1990's. He reported that prior to the CPAP machine, he
had daytime hypersomnolence. The veteran reported a family
history of sleep apnea, and noted that he had used the CPAP
machine since 1999.
After reviewing the medical records in the veteran's claims
file, the examiner noted a diagnosis of sleep apnea, and
opined that the veteran's condition did require the use of a
CPAP machine. The examiner further noted that the veteran
had a diagnosis of sleep apnea which originated during his
period of military service.
In sum, the evidence in this case reveals that the veteran
did not have a diagnosis of sleep apnea upon entry into
service in 1987. At some point during the mid-1990's, the
veteran's wife noticed that the veteran would stop breathing
for short periods during the night. A diagnosis of sleep
apnea was indicated in April 1999, during the veteran's
period of active service. Although the June 1999 sleep study
did not reveal a diagnosis of apnea at that time, the
diagnosis of obstructive sleep apnea was confirmed in a
November 1999 study. Furthermore, a VA examiner in May 2001
provided a nexus between the onset of the sleep apnea and the
veteran's period of active service. Specifically, the
examiner opined that the veteran did, in fact, have a current
diagnosis of sleep apnea, evidenced by the use of a CPAP
machine since 1999. The examiner further opined that the
veteran's obstructive sleep apnea originated during service.
There is no contradictory opinion of record. As such, the
Board finds that the evidence supports a finding that the
veteran has a current diagnosis of obstructive sleep apnea
which originated during his period of active service. As all
three Hickson elements are satisfied in this case, the Board
finds that a grant of service connection is warranted for
obstructive sleep apnea. 38 U.S.C.A. §§ 1110, 1131 (West
2002). 38 C.F.R. § 3.303 (2004).
ORDER
Service connection for obstructive sleep apnea is granted.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs